1. The plaintiff, here appellant, sued in ejectment alleging that 1st and 2nd defendants had attorned to him as tenants by paying him rent for one year, 3rd defendant being their sub-tenant, and that they had subsequently set up the title of 4th defendant. Plaintiff set up his own title as by purchase from Sattemma, who claimed under the Will of Rajasekharadu. Defendants denied the title of both the last mentioned and contended that the decisions in Original Suits Nos. 212 of 1905 and 133 of 1915 were res judicata in their favour. The District Munsif accepted this contention. The lower Appellate Court confirmed his decision, relying solely on the judgment in Original Suit No. 212 as the judgment in Original Suit No. 133 was the subject of a pending second appeal in this Court. It has since been confirmed here in Second Appeal No. 1057 of 1917.
2. Plaintiff argues first that, even if this Court's judgment can be looked at, it will be decisive only as between himself and 4th defendant, who were parties to it, not in favour of 1st, 2nd and 3rd defendants, who were not and of whom 1st and 2nd defendants have paid rent to him for one year and are, therefore, (together with 3rd defendant who holds under them estopped from denying his title or pleading, as they did, the title of 4th defendant. But, although this estoppel is mentioned in the plaint, it has apparently been relied on only at the hearing before us, not in the grounds of second appeal or in either of the lower Courts for, although the payment of rent, on which the estoppel depended, was denied, no issue was framed regarding it. Plaintiff, having impleaded 4th defendant, clearly sought a decision against his permanent title and against the claims of the other defendants only as based on it. In the circumstances he must be taken to have waived his plea of estoppel against 1st, 2nd and 3rd defendants and thus, the only objection to the character of this Court's judgment as res judicata, therefore, fails.
3. Plaintiff argues next that the judgment cannot be looked at, because it is not on the record and we cannot admit it or any other evidence in second appeal. This argument is answered by reference to Order XLI, Rule 27, and Order XLII, Rule 1. For there is no reason for holding that the former provision is not applied by the latter to second appeals; and the substantial cause referred to in Order XLI, Rule 27 (1) (6), is available in the possibility that, if this Court's decision is not considered, the result may be two conflicting decrees between the same parties. Plaintiff relies on Ramachandra v. Krishnaji 5 Bom. L.R. 615 and the judgment of Sadasiva Aiyar, J., in Raman Menon v. Mammali 39 Ind. Cas. 954 : (1917) M.W.N. 560, the suggestion in both cases being that the proper course is not to ask the Court to accept newly discovered evidence in second appeal, but to apply to the trial Court for a review in order to its consideration. But there is nothing in the wording of the rule, above referred to, to warrant a distinction between newly discovered and other fresh evidence, and we have not been shown that the practice of this Court to refuse to deal with the former is as clearly established as it is apparently in Bombay or was supposed to be by Sadasiva Aiyar, J., here. We see no objection, on grounds of principle or convenience, to the admission in second appeal of a document such as this Court's judgment which could not have been produced earlier because it was not in existence, and which requires no further evidence to explain it. There is no resemblance between these circumstances and those dealt with in the oases relied on, since the evidence offered in them related to a question of fact and, the sole ground on which Spencer, J., concurred in Sadasiva Aiyar, J.'s decision in the Madras case was that, it would have been inconvenient to receive it. The conclusion must be that no general rule as to the party's right to have newly discovered evidence taken in second appeal can be laid down, but that each claim must be dealt with on its merits with reference to the existence of the sufficient cause referred to in Order XLI, Rule 27, and that such cause has been shown in the present case.
4. Plaintiff's remaining objection is that Section 11 of the Code of Civil Procedure prohibits the trial of an issue, in which the matter in issue has been in issue in a former suit between the same parties, and as this Court is not holding a trial it is not affected by the prohibition. The question raised in effect is whether the hearing of a second appeal is not a trial. We have been referred to no authoritative definition of a trial and plaintiffs proposal to apply the term only to proceedings in which evidence is or can be taken and questions of fact can be decided, that is, to proceedings before Courts of first instance and first appeal, cannot be accepted. For apart from the anomaly involved in treating a decision reached on the pleadings as a trial, when it is reached by the Courts last specified, but as other than a trial when, although it would have been reached earlier, it is actually reached on the same materials only in second appeal, the distinction is not maintained in the two oases on which plaintiff relies. For in them the proceedings of a Court of first appeal were in question. In Abdul Majid v. Jew Narain Mahto 8 Ind. Dec. 154 the High Court, no doubt, held that the Appellate Court 'was not holding a trial and, therefore, Section 13 of the Code then in force' could not apply and that Court's decision founded on res judicata could not be sustained; and this decision was approved by a Full Bench of this Court in Panchanada Velan v. Vaithinatha Sastrial 16 M.L.J. 63. But the contrary view is implied in Balkishan v. Kishan Lal (1889) A.W.N. 42 : 6 Ind. Dec. 523, which was approved in this Court in Venkata Narasimha Appa Row v. Sobhanadri Appa Row 13 M.L.J. 134, and in Calcutta in Midnapore Zemindary Co., Ltd. v. Nitya Kali Dasi 24 Ind. Cas. 243, in which dissent from Abdul Majid v. Jew Narain Mahto 8 Ind. Dec. 154 in that decision is unconnected with the preceding statement of the reason for it, that 'the doctrine of res judicata did not apply', when, as in the case before the Court, 'the very object of the appeal in substance, if not in form, was to get rid of the adjudication which was said to render the question which the Appellate Court was asked to decide res judicata. That observation is, it may be respectfully suggested, intelligible with reference to the case before the Court and to the case in Abdul Majid v. Jew Narain Mahto 8 Ind. Dec. 154 because res judicata was pleaded in both in respect of a decision in another suit decided on the same evidence as that with which the appeal was connected. Here that is not the case; and it is, therefore, unnecessary for us to treat Panchanada Velan v. Vaithinatha Sastrial 16 M.L.J. 63 as conclusive or the reference in it to Abdul Majid v. Jew Narain Mahto 8 Ind. Dec. 154 as an endorsement of all the dicta contained therein or of that on which plaintiff relies. In accordance with the other decisions above referred to, which include one of this Court, plaintiff's objection to the consideration of this Court's judgment in Second Appeal No. 1057 of 1917 must be disallowed.
5. The foregoing exhausts plaintiff's arguments. The result is that the second appeal fails and is dismissed with costs.